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VELS Level 6
Causing serious injury intentionally
2 Sentencing Advisory Council, 2012
1. What is sentencing?
What laws guide a judge when sentencing?
Pho
to: J
ohn
Fre
nch
/ Cou
rtes
y of
The
Age
Chief Justice Marilyn Warren of the Supreme Court of Victoria
3 Sentencing Advisory Council, 2012
Who is responsible for sentencing?
In Australia, responsibility for sentencing is spread between
three groups
Parliament ~ makes the laws ~
Government~ puts laws into operation ~
Courts ~ interpret the laws ~
Creates offences and decides what the maximum penalties will be
Makes the rules the courts must apply to cases
Sets up punishments for judges and magistrates to use
Apply the law within the framework set up by parliament
Set specific sentences for individual offenders
Correctional authorities (e.g. prisons) – control offenders after sentencing
Adult Parole Board – supervises offenders who are on parole
4 Sentencing Advisory Council, 2012
Where is sentencing law found?
• Sentencing Act 1991
• Children, Youth and Families Act 2005
• Common law – previous court judgments
• Various Acts and Regulations creating particular offences, e.g.:
– Crimes Act 1958 deals with a range of crimes including injury offences
– Road Safety Act 1986 deals with offences related to driving under the influence of drugs or alcohol.
5 Sentencing Advisory Council, 2012
Types of sentences
imprisonment
drug treatment order
suspended sentence
community correction order
fine
adjourned undertaking
Most severe
Least severe
6 Sentencing Advisory Council, 2012
2. Sentencing theory
What must a judge consider when deciding what sentence to impose?
Image source: Victorian Sentencing Manual, Judicial College of Victoria
7 Sentencing Advisory Council, 2012
Purposes of sentencing
These are the ONLY purposes for which sentences might be given
Sentencing Act 1991, s 5(1)
PURPOSES OF SENTENCING
Community protection Deterrence
RehabilitationDenunciation
Fair punishment
8 Sentencing Advisory Council, 2012
Principle of parsimony
Judges should choosethe most straightforwardsolution when sentencing
Parsimony~ taking extreme care in using resources ~
If a choice of punishmentexists a judge should take care to choose the least
severe option that will achieve the purposes of sentencing
Example If there is a choice between imposing a fine or a community correction order,
a fine should be imposed
Sentencing Act 1991, ss 5(3), 5(4), 5(5), 5(6), 5(7)
9 Sentencing Advisory Council, 2012
Factors that must be considered
Sentencing Act 1991, s 5(2AC(2))
Maximum penalty& current sentencing
practice
Type of offence& how serious
Offender’sdegree of
responsibility& culpability
VictimAggravating or
mitigatingfactors
Relevant Actsof Parliament& statistical
data
Factors making the crime worse, intention, effects, method, motive,
weapons,role the offender
played
Prior offences,age, gender,race, culture,
character, mentalstate, alcohol,
drugs, gambling,personal crisis,
guilty plea
Impact of crimeon victim (e.g.psychological
or physicaltrauma), materialor financial loss
Factors thatincrease orlessen the
seriousnessof the crime
Victim ImpactStatement
Factors that must be considered when sentencing
10 Sentencing Advisory Council, 2012
Victim Impact Statements
• When sentencing an offender, courts must consider the impact of the crime on any victim
• A victim of the offence may make a Victim Impact Statement (VIS)
• A VIS contains details of any injury, loss or damage suffered by the victim as a direct result of the offence
• A person who has made a VIS can request that it be read aloud during the sentencing hearing
11 Sentencing Advisory Council, 2012
How long is a sentence?
• Cumulative sentences are sentences for two or more crimes that run one after the other, e.g. 2 x 5-year prison sentences served cumulatively = 10 years in prison
• Concurrent sentences are sentences for two or more crimes that run at the same time, e.g. 2 x 5-year prison sentences served concurrently = 5 years in prison
• The head sentence is the sentence given for each crime before a non-parole period is set
• The total effective sentence (TES) is the total sentence for all crimes once they have been made cumulative or concurrent
12 Sentencing Advisory Council, 2012
Non-parole period
Non-parole period• is set by the court
• is the part of the sentence the offender must serve in prison before being eligible for parole
• must be fixed for sentences of 2 years or more
• may be fixed for sentences of 1–2 years
• Is not given if the sentence is less than 1 year
Parole is the release of a prisoner before the end of a sentence, subject to certain conditions (e.g. regular reporting to parole officer), to help him or her settle back into the community
13 Sentencing Advisory Council, 2012
3. The crime and the time
What is causing serious injury intentionally?
What is the maximum penalty?
Photo: Trevor Poultney
14 Sentencing Advisory Council, 2012
Causing serious injury intentionally
Maximum penalty
• A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence
• Penalty: Level 3 imprisonment (20 years maximum)
Crimes Act 1958, s 16
15 Sentencing Advisory Council, 2012
What does ‘injury’ mean?
• ‘injury’ includes:
– unconsciousness
– hysteria
– pain
– any substantial impairment of bodily function
• ‘serious injury’ includes a combination of injuries
Crimes Act 1958, s 15
16 Sentencing Advisory Council, 2012
CSII – people sentenced
109 94 86 98 99
139
126
104
116111
0
50
100
150
2006-07 2007-08 2008-09 2009-10 2010-11
Nu
mb
er o
f p
eop
le
People sentenced Immediate custodial sentence
17 Sentencing Advisory Council, 2012
CSII – sentence types
8673 71 76 83
2126
1719 12
17
79
14 10
15
20
7
76
0
50
100
150
2006-07 2007-08 2008-09 2009-10 2010-11
Nu
mb
er o
f p
eop
le
Imprisonment Wholly/partially suspended
Youth training centre order Other
18 Sentencing Advisory Council, 2012
CSII – age and gender of people sentenced
56
86 83
43
2031
180
1
62
2155388
200
50
100
150
200
15-17 18-19 20-24 25-29 30-34 35-39 40-44 45-49 50+
Age group (years)
Nu
mb
er o
f p
eop
le
Male Female
19 Sentencing Advisory Council, 2012
Total effective sentence & non-parole period
14 13
30 41
15 54
15 49 18
21 10
17 6
10 8
5 4
1
1
No NPP
<1
2
3
4
5
6
7
8
9
10
<1 2 3 4 5 6 7 8 9 10 11 12 13
Total effective sentence (years)
No
n-p
aro
le p
erio
d (
year
s)
20 Sentencing Advisory Council, 2012
4. The case
What are the facts of this case?
21 Sentencing Advisory Council, 2012
The offender
• Roger Willett is a 20 year old man
• He was 19 at the time of the offence
• He has been found guilty of one count of intentionally causing serious injury
• The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment
22 Sentencing Advisory Council, 2012
The crime 1
• Roger Willett and two friends were drinking in a pub carpark after a party. As they drove out of the carpark, Roger (a passenger in the front seat of the car) commented to the others about the victim, Trent Beyer
• Trent Beyer had been drinking at the pub. He was now sitting at a bus stop drinking a beer stubby. Roger thought Trent was staring at them
• Trent ran after the car. He seemed as though he was about to throw a stubby. The car stopped. The three men got out
• Roger says he was threatened with the stubby and knocked it out of Trent’s hand
• There was an argument between the driver and Trent. Then Roger and Trent exchanged blows
23 Sentencing Advisory Council, 2012
The crime 2
• Roger grabbed Trent by the throat, punching him and causing him to fall backwards over a small fence
• Roger fell over the fence onto Trent and kicked him 10 times and punched him more than 20 times, even though Trent was unconscious after the first few punches. At first, Trent was kicking Roger back
• Roger’s friends pulled him off Trent and all three drove off, leaving Trent still unconscious inside the fence
• The three in the car did not offer the victim assistance. They talked about calling an ambulance but didn’t, and Trent was found by a passerby
24 Sentencing Advisory Council, 2012
Factors for consideration
• Roger pleaded guilty
• Roger had been advised by his doctor against drinking because he was taking Tegretol to prevent epileptic seizures
• Roger knew he reacted badly to mixing alcohol and Tegretol
• Roger has six previous convictions for offences of dishonesty
• Roger is single and has a full-time job
• Roger was physically abused as a child and placed on a protection order
• Since the crime Roger’s older sister has taken him ‘under her wing’ and provided some supervision
25 Sentencing Advisory Council, 2012
Victim Impact Statement
• Trent was in hospital for 13 days
• He had severe facial injuries including a foot imprint on the bones of the skull, severe bruising and swelling over the face, a deep cut to his left eye, a complex facial fracture and a fracture at the base of the skull
• Treatment was ongoing. He needed surgery and dental treatment after his initial stay in hospital
• He described suffering from fits of depression and nervousness at night
• He complained of balance problems and dizziness to such an extent that he had to quit his job as a window cleaner
26 Sentencing Advisory Council, 2012
5. The sentence
What sentence would you give?
Photo: Department of Justice
27 Sentencing Advisory Council, 2012
You decide …
What sentence would you give?
• If imprisonment, what would be the head sentence and non-parole period?
• If a community correction order, what would be the length of the order?
• If a fine, what would be the amount of the fine?
28 Sentencing Advisory Council, 2012
The maximum penalty
Causing serious injury intentionally
• A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence
• Penalty: Level 3 imprisonment and/or fine(maximum 20 years’ imprisonment and/or 2400 penalty units)
Roger, guilty of one count of intentionally causing serious injury, could receive:
• possible maximum imprisonment of 20 years
• possible maximum fine of 2400 penalty units
Crimes Act 1958, s 16
29 Sentencing Advisory Council, 2012
What the trial judge decided
Roger Willett’s case, County Court • Count 1 18 months’ imprisonment
• Non-parole period 12 months
Judge’s comments‘… this sentencing task was difficult given the brutality of the attack by [the offender] for which he freely took responsibility, the seriousness of the offence and yet on the other hand [the offender’s] comparative youth, his lack of significant [prior offences], his genuine remorse and his very real chances of rehabilitation.’
30 Sentencing Advisory Council, 2012
6. Conclusion
Effective sentencing achieves a balance between the interests of society, the concerns of the victim and the best interests of the offender.
The more information society has about crimes and the people involved in them, the more reasonable it is in its demands about sentencing.
Photo: Department of Justice
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